A Study on Claim Arising From the Government Procurement Act by the Complaint Tenderer for the Recovery of Tender Preparation, Protest & Complaint Cost -Including Legal Basis of Compensation and Burden of Proof

• Main Authors: Ching-chiang Lin, 林清強
• Other Authors: Mu-kuei Lee
• Format: Others
• Language: zh-TW
• Published: 2011
• Online Access: http://ndltd.ncl.edu.tw/handle/75803915874379214496

碩士 === 東吳大學 === 法律學系 === 99 === In accordance with Article 85.3（“this Article”）, Government Procurement Act, the Complaint Tenderer, who had challenged the procedural default of procuring Agency in time and his complaint was granted with legal ground, is entitled to recover its cost of bid/proposal preparation and protest/complaint cost under the circumstance that the solicitation, proposal review, or award of the procuring Agency is declared incompliant with statutes and regulations by the review decision of Public Construction Commission (PCC), Executive Yuan. This Article was enacted simply following the Article 20.7.(c), Government Procurement Agreement (GPA), “correction of the breach of the Agreement or compensation for the loss or damages suffered, which may be limited to costs for tender preparation or protest”. However, as the extent of compensable cost is not defined in the Act, this legal loophole leads into Administrative Court’s difficulty in determining the reasonable recovery for labor cost on tender preparation. In addition, Complainant also encounters the same difficulty to substantiate its cost on bid and proposal preparation. This is because any and all business development cost is internal in nature and cannot be substantiated through third party. Lacking a compensation reference, the Administrative Court tends to decline the labor cost by either construing the statute in favor of Agency or imposing the burden of proof on the Complainant. Aiming at proposing a resolution to the above problem, this Thesis studied the decisions of Administrative Courts in latest decade in connection with Complainant’s claim for the recovery of bid preparation and protest/complaint cost. Subsequently the controversy over the legal nature of this Article is clarified and a compensation reference is proposed. The study result reveals that the legal nature of this Article is a pre-contractual liability imposed on government procurement and the labor cost is within the compensation extent. A compensation reference on the labor cost is proposed to presume the cost for bid/proposal preparation by 0.6% ~ 1.2% of bidding price or NT300,000 , whichever is greater, for procurement budget over NT50,000,000.